1504784 (Refugee)

[2015] AATA 3685

1504784 (Refugee) [2015] AATA 3685 (12 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504784

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Josephine Kelly

DATE:12 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 November 2015 at 9:16am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant claims to be a citizen of Sri Lanka.  He applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] August 2013. The Tribunal differently constituted held a hearing on 26 November 2014 and affirmed that decision on 17 December 2014. The applicant applied to the Federal Circuit Court [in] March 2015.  That court remitted the application for review to the Tribunal for reconsideration, by consent. 

3. The applicant appeared before the Tribunal again on 20 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

SUMMARY OF THE LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

4. owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10.  In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF THE CLAIMS AND EVIDENCE, AND FINDINGS

The issues in this case

11.  The issues in this case are whether the Tribunal accepts that the applicant’s evidence about what happened to him, his family members and neighbours in Sri Lanka is credible, and

a.if so, whether those circumstances meet either of the criteria for protection, and

b.if not, whether those circumstances and/or his treatment on return as a failed Tamil asylum seeker who left Sri Lanka illegally meet  either of the protection criteria.

12.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background

13.  The following findings are uncontentious.  They are based on written information that the applicant provided to the Tribunal, including a copy of the delegate’s decision record.

14.  The applicant is a Tamil Hindu born on [date] in [District 1], in the Eastern Province of Sri Lanka.  He is a citizen and national of that country.

15.  He left Sri Lanka by boat [in] July 2012.  He took part in an entry interview [in] September 2012.

16.  He was interviewed by the delegate [in] July 2013. A recording of that interview was before the Tribunal.

17.  The first Tribunal hearing was held on 26 November 2014. 

The applicant’s claims for protection

18.  The applicant made the following claims for protection in a statement dated 21 November 2012 that accompanied his visa application:

• [In] December 2011, the applicant and his uncle were on their way to town on a motorbike when they were stopped by the Sri Lankan Army (SLA).  The SLA took his uncle to the camp nearby. The applicant was told that they would release his uncle after one and a half hours and was instructed not to tell anyone.

• The applicant told his aunt what had happened. His uncle did not return after the one and a half hours and his aunt went to the police station seeking help. The police did not believe what she said and did not investigate.

• His aunt asked the applicant to go to the police station to testify about the incident, which he did.  He was asked to give a written statement.

• The aunt approached the police the following day to find out her husband’s fate. The police advised her that the SLA had admitted to having taken him as they believed that he had links with the LTTE.

• The applicant received a text message on his phone in Sinhalese but he did not understand it because he does not understand that language. He noticed his ID card number was on the message. He tried to call the number unsuccessfully. He called his phone company for more details. They advised that the text message was a type of security related message. He received similar messages in the following weeks but was not too concerned.

• The SLA issued a letter and gave it to the police attesting to the fact that they had arrested the applicant’s uncle. He has not been taken before the courts.

• The applicant believes his uncle has no links to the LTTE because he was a government employee who [details of job deleted]. He believed his uncle was taken because he had [details deleted]. He is not sure why that is relevant, but they had no other idea why he had been taken.

• The applicant’s aunt approached several people about his uncle’s unlawful arrest, including the Protection Minister (Defence), National Tamil Alliance (TNA) and the Human Rights Commission of Sri Lanka but gained no assistance.

• The SLA began to harass the applicant more frequently than before because they knew that he had witnessed the event and told his aunt, despite being ordered not to. He began to worry that the SLA would harm his [sibling] and mother.

• [In] April 2012, the SLA went to the applicant’s house looking for him. Luckily he was not at home. The SLA frightened the applicant’s mother and spoke to her in a threatening manner, asking about the applicant’s whereabouts in order to investigate him and take some of his details. She informed the SLA that the applicant was not home but that she would tell the applicant that they were looking for him.

• His mother called him and advised him not to come home. He and his mother were very scared of the consequences of the applicant being taken by the SLA and possibly going missing. They had already suffered the loss of the applicant’s brother in 2006 when he went missing. At that time his father was also an active member of the TNA. Following the killing of a group of students, the applicant’s father made a speech at the funeral about who was responsible. The applicant’s father took a stance against the government and it was during that time that the applicant’s brother was kidnapped. The family believes that he was kidnapped by the by the SLA or Karuna group.  The applicant’s family does not know to this day what happened to his brother. Prior to that kidnapping, the applicant’s father was also beaten by one of the groups associated with the Government, resulting in a broken knee.

• The applicant stayed with a relative in [Town 2].  His mother would tell him that she would see SLA soldiers unusually observing their house and the area around. The applicant and his mother were convinced that the SLA’s actions were related to him.

• The applicant felt too scared to return home fearing that he would face harm at the hands of the SLA, the same thing as happened to his uncle.  He will be detained and his family will get a letter and the applicant will disappear. The applicant fears that as a Tamil, particularly a young Tamil male, that the SLA will not show any sympathy, but will mistreat and harm him.

• The applicant does not trust the SLA. They detained his uncle who did not commit any wrongful act. The SLA provided a letter stating that his uncle was arrested on suspicion of being linked to the LTTE. The applicant’s family still do not know where the uncle is being held.

• People are still going missing in the applicant’s area. After the SLA came looking for the applicant, his friend ([name]), who is from the same village, has gone missing. The Tamil people are still facing these atrocities.

• The applicant feared for his safety in Sri Lanka. He could not return to his home area because the SLA was searching for him. He could not register with the authorities and remain in another area in the long term. He feared that registering with the authorities would result in a transfer of his details to the SLA.

• The applicant’s mother was very concerned about him and wanted him to remain somewhere safe. When she heard of the boat heading to Australia, she made arrangements for him to leave Sri Lanka, which he did [in] July 2012.

• If he returns to Sri Lanka, the applicant fears that he will face harm at the hands of the Sri Lankan government, the SLA or associated paramilitary groups. He fears he will go missing, like his brother and uncle, as those acts are still occurring there.

• The applicant believes that he has been targeted because he was a witness to what happened to his uncle. The SLA told him not to disclose this information to anybody. The applicant believes the SLA was not intending to report his uncle’s disappearance. Only after he and his aunt complained to the police, did the SLA admit what they had done.

• The applicant fears that if he returns to Sri Lanka after seeking asylum in Australia, he will be harmed. There have been incidents of returnees being beaten and harmed, and he fears the same fate.

• The applicant states that the Tamil people in Sri Lanka are treated poorly by the SLA. [In] November 2011, he was playing songs on the speaker in the Hindu temple.  The SLA questioned him as to why he was playing those songs and slapped him across the face. Remembrance Day is held on 27 November in memory of the LTTE people who were killed. Slogans relating to the event were placed on the wall near the temple. The SLA thought the applicant was involved and knew who wrote the slogans.

• The slap was very violent and carried a lot of aggression and hatred by the SLA soldier. It really scared the applicant. This type of indignity is faced by the Tamil people regularly. The SLA feels the Tamil people deserve no respect.

• There is no protection for Tamil people. If he is harmed by the SLA, the government will not provide him with protection because the SLA is part of the government

• The applicant cannot relocate to another part of Sri Lanka.  If he does and gives details to the government authorities, his details will be passed to the SLA and he will be harmed.

Submissions

19.  The representative provided submissions dated 24 November 2014.  The submission explained that the applicant failed to disclose all the details of his links with the LTTE to his then representative and the delegate for fear of not being security-cleared by the Australian authorities. After arriving in Australia before his entry interview, the applicant was advised by other applicants and inmates in detention centres not to disclose any links to the LTTE, even if remote, because he will not be not be cleared by ASIO. He feared that disclosing those links would result in his application being rejected, his being detained for a long period and ultimately having to return to Sri Lanka to face definite danger to his life and liberty.

20.  The representative also said that the applicant instructed that owing to some misunderstandings and/or misinterpretation, many answers to questions in the case in forms and at interviews did not accurately reflect what he meant or wanted to convey.

21.  The submission then set out a summary of the facts in the case, including two facts not disclosed to the delegate.

22.  The applicant was taken forcibly by Liberation Tamil Tigers Eelam (LTTE) in March 2004 at [age] years of age. He was given preliminary physical training, education classes and a nomme de guerre “[name]” but was released after suffering severe [health condition], in response to his parents’ pleas and the fear of disease spreading to other children.

23.  He was able to continue his studies after being released. He was placed in an orphanage named [name]. Security forces did not suspect children in that orphanage and did not interfere or harass them.

24.  Security forces are unaware of the applicant’s history. He fears that if they learned of that, it would threaten his life. He fears that they would already have investigated and ascertained the fact and he fears that his refoulement in the future would trigger investigation of the past history.

25.  The applicant’s brother was also a supporter of the LTTE, assisting with LTTE political work.  The applicant believes that his brother’s disappearance in 2006 was a result of both his involvement with the LTTE and the father’s involvement with TNA.  In 2006, his father made a speech about who was responsible at the funeral following the killing of a group of students. His father had taken a stance against the government. That was when his brother went missing.

26.  The applicant’s family relocated to the LTTE the controlled Vanni district because of violent happenings in [District 1] in 1991, his father worked for the LTTE in [a] division, until a relocated back to [village] in 1996 owing to the escalation of violence between the SLA and the LTTE in the Vanni. Before returning to [village], they took shelter in a makeshift refugee camp in [town] for six months.

27.  The submission set out country information about torture and persecution of LTTE suspects, returning failed asylum seekers, and illegal departure, on disappearance and extortion, on prison conditions, and relocation.

28.  The submission went on to set out an assessment of the protection obligations under the refugees convention, a response to the delegate’s reasoning and an assessment of protection obligations under complementary protection.

29.  The submission included a letter from a former member of parliament for [District 1], [name] dated [in] August 2013.

30.  The applicant signed a declaration dated 24 November 2014 to the effect that the submission “dated 24 December 2014” had been read and explained to him, and “does accurately and completely present my claims”. The Tribunal finds that “December’ was a typographical error.

31.  After the previous Tribunal hearing, the representative provided a submission on 11 December 2014 addressing various matters raised during the hearing:

• On page 10 of the entry interview the applicant claimed that he stayed in the orphanage for 3 to 4 years in order to safeguard himself after his brother’s abduction. The orphanage was assisted by a number of international bodies including the [name] who visited the orphanage frequently. In fact, he was admitted to the orphanage in 2005. The incident involving his brother going missing occurred in 2006. In his application forms he referred to the orphanage as a refugee camp in [District 1].  His initial reason for living in the orphanage was to ensure his safety following his release from the LTTE, from both the Sri Lankan security people and the LTTE. His brother’s abduction was a factor for him continuing to stay in the orphanage.

• The applicant said that his brother’s abduction was a reason for his residing in the orphanage at the entry interview because he feared not being cleared by ASIO if he divulged that he had been a child soldier of the LTTE.

• The submission referred to article 198 of the UNHCR Handbook on procedures and criteria for determining Refugee Status which says that a person who is in fear of the authorities in his own country may feel apprehensive about any authority and may therefore be afraid to speak freely and give a full and accurate account of the case.

• In support of that submission was a signed letter from [an official] of the orphanage which says that the applicant was in the orphanage from May 2005 to December 2007 and is of good character.

• A handwritten letter from [name] stated that she was working in the orphanage, and the applicant was there from 2005 to 2007 “after returning from Liberation Tigers of Tamil Eelam, as he was unable to get protection from his mother”.  A photo ID of the writer stating that she was a [position] of the orphanage was also enclosed.

32.  The submission included reference to “some available in recent country information”, including about torture, rape and ill-treatment of Sri Lankan returnees, Sri Lankans associated with LTTE, Tamils, and a submission that the applicant is honest and genuine.

33.  On 27 August 2015, after the second Tribunal hearing, the representative provided further written submissions and additional country information.

Documents

34.  In addition to documents already referred to, the applicant provided copies of the following documents in support of his application:

• An English translation by a sworn translator of his father’s death certificate stating that the date of death was [in] October 2007 and caused by [details deleted];

• A one page English translation of a letter to the Grama Nedhari, from “[name]” confirming that his child “[Mr A]” disappeared [in] April 2006 and a certification from the Grama Nedhari “that the above applicant’s request was recorded in the Country’s daily logbook on the [date]/10/2012”.

• A “Better Access Mental Health Care Plan” for the applicant dated [in] July 2013.

• A letter from the Senior Pastor of [a church] dated [in] July 2013 confirming that he had known the applicant for about six months and that the applicant was attending Tamil services.

• Two colour photographs, one of a group of young boys and another of a young man. 

Consideration of the evidence and claims, and findings

35.  Having listened to the applicant at the hearing, the Tribunal told him that it accepted that he had been in the orphanage and that his brother, [Mr A], had disappeared. The applicant’s detailed evidence, and in the case of his brother, the supporting documentary evidence, was persuasive.

36.  It is necessary in this case to consider carefully what the documents the applicant provided in support of his application actually say.

37.  The letter apparently on letterhead of the “[orphanage]” shows a “Boy’s Home’ located at [District 1].  It certifies that “[Mr A]” was in the [orphanage] from May 2005 up to December 2007” (emphasis added).

38.  Similarly, the letter from [name] stated that “[Mr A]” studied at that home “in the years of 2005, 2006 and 2007, after returning from Liberation Tigers of Tamil Eelam” (emphasis added).

39.  The former MP, who has apparently been re-elected according to the submission, wrote:

40.  ‘This is to certify that [Mr A], residing at … was known to me well (emphasis added).

41.  His father was a supporter of our political party called “Illankai Tamil Arasu Kadchi” and he has passed away.  His [brother] [Mr A] was abducted by unknown person on [date].04.2006. (Emphasis added.)

42.  Further [Mr A] left from his house due to the search and kidnap done by unknown armed groups on [date].04.2012, thereafter they visit to the home continuously and threatened his mother.  Currently he has a threat to lie in his own country therefore he left the country to protect his life. (Emphasis added)

43.  The death certificate shows that his father’s name was [name].

44.  The English translation of the one page document including a letter from “[Ms B]” to the Grama Nedhari and the latter’s certification includes the following information.  “[Ms B]” said that that person had been living in the specified address with their six children and then provided the following details of those children:

a.[Name]

b.[Name]

c.[Name]

d.[Name]

e.[Name]

f.[Name].

45.  The Tribunal accepts that “[Ms B]” is the applicant’s mother. In the typewritten attachment to his application setting out the applicant’s family members his mother’s name is spelt “[name]”.

46.  The writer requested “to be confirmed that [Mr A] was disappeared on [date]/04/2006”.

47.  The Tribunal finds that Sri Lankan names can be rendered in different ways.  For example, the applicant’s name has been typed in the statement accompanying his visa application and in the visa application form as “[name]”.  A handwritten initialled alteration has been made to both to correct the spelling to “[name]”.  The review application was completed with the “[name]” spelling and was not corrected.  Based on the letters he provided, the applicant’s name can also be rendered “[name]” and “[name]”.

48.  In the typewritten attachment to the application, the applicant’s [brother’s] name is spelt “[name]”. The Tribunal finds based on the documents before it that an alternative spelling is “[name]”.

49.  The Tribunal accepts that the applicant was taken by the LTTE for about eight months in 2004 but was taken home because he caught [a disease].  Based on his evidence at the hearing, the Tribunal finds that he helped with the provision of food and water to people being trained.  He also assisted them when they were dismantling weapons by giving them solutions for the maintenance of their weapons. He was not trained to fight.  He was trained how to protect himself from shell attacks and to crawl under barbed wire to escape attacks. His mother put him into the orphanage after he was released but he attended the same school as he had before being taken by the LTTE.  One of his [brothers] was studying in Jaffna and [Mr A] was studying in their home village when the applicant was taken by the LTTE.  When [Mr A] disappeared, he was studying in [District 1] and the applicant was in the orphanage.  The applicant was also in the orphanage when his father died.

50.  At the Tribunal hearing, the applicant said that he came to Australia because he and a person he described as his uncle were stopped at a checkpoint, his uncle taken aside and the applicant told that his uncle would be released in one and a half hours and not to tell anyone.  He went home and kept quiet.  His uncle did not return. The applicant went to his aunt and told her that his uncle had been taken by the army.  She went to the police to complain.  They did not take the complaint and wanted nothing to do with it. The next day his aunt took him to the police station.  He argued with police and said that he had witnessed the army take away his uncle. They asked him for a complaint in writing.  He gave telephone details and so on.  They asked his aunt to go to the police station the next day.  The army has given a letter to the police stating that the uncle is in custody because he was helping the LTTE.  She went to the Tamil party, human rights organisations but no-one could help her. Then the applicant started receiving messages on his telephone in Sinhalese with his ID number.  He did not know where they were coming from.  He rang the telephone company and was told they were coming from Defence.  He only showed his mother the messages and told his brother. He got scared.  Army personnel would hassle him while he was walking.  [In] April 2013 he went to the padi field.  Armed people came to his house and asked his mother about him. She rang the applicant and told him what had happened and to go to [Town 2].  He also said that she could see the movements of army personnel and footprints and cigarette butts, and a dog barked.

51.  Although the applicant confirmed that the date of that incident was [in] April 2013, he also said that it was about one and a half months before he came to Australia, that is, in 2012.  His mother organised his departure. She paid 10 lakhs, or about $10,000. 

52.  The only document the applicant provided to support those claims, is the letter from the Member of Parliament, summarised above.  That letter does not mention the applicant’s uncle at all and does not mention even indirectly any prior incident occurring in 2011.  It does refer to his father’s membership of a political party and [Mr A]’s disappearance in 2006. 

53.  When the Tribunal put to the applicant that the letter said that he left the house due to the search and kidnap by unknown armed groups which was not consistent with his claim about his uncle, the applicant repeated that they came searching for him and threatened to kidnap him.  When the Tribunal commented that the MP did not refer to the applicant’s difficulty in 2004 or his brother’s connections with the LTTE which the applicant talked about at the hearing, the applicant explained that the MP would be reluctant to write about those matters because of his position and in case the letter was leaked to the authorities in Sri Lanka which would cause trouble for his family there. The Tribunal accepts that the MP may be cautious about mentioning links with the LTTE for the reasons the applicant stated. 

54.  When the Tribunal said that it might not give much weight to the letter because the MP might have been trying to help him out and had not been present and was repeating what someone else had told him, the applicant said that the MP was a responsible individual, is always honest and used to take Tamils to foreign organisations.

55.  The Tribunal does not give any weight to the MP’s statement about what happened [in] April 2012 or thereafter for the following reasons.

56.  It refers to “kidnap done”.  There was no kidnap.  The applicant claimed at most that there was a threat of kidnap. It is not consistent with the applicant’s claim. 

57.  The Tribunal pointed out to the applicant that the MP did mention that his brother had been taken by “unknown person” in 2006 and suggested that that may put the MP at some risk. The applicant said that that happened commonly in Sri Lanka and the MP would have had no fear of disclosing that. That being so, the Tribunal does not accept that MP could not have made a similar comment about the applicant’s uncle being taken by unknown persons in 2011 and the consequent risk or threat to the applicant because he was with him when he was taken. If the MP had known about the claimed incident involving the applicant and his uncle, the Tribunal does not  accept that he was unable to formulate words to convey what had happened as he had in relation to the applicant’s brother, without putting himself, the applicant, or the applicant’s family at risk.

58.  Notably, the applicant has not provided a copy of the letter he claimed that the SLA had provided stating that his uncle had been taken because he was suspected of links with or being LTTE.  When the Tribunal commented that no copy of that letter had been provided, the applicant provided no adequate explanation. He said that he was not sure if his uncle had links with the LTTE.  When the Tribunal commented that if such a letter had been issued, they had no further interest in the applicant, he said that they were angry with him for disclosing it to anyone.

59.  The applicant denied that he had made up the claim about his uncle, saying that it was a true incident and really did happen. The Tribunal does not accept the applicant’s claim about that incident occurring or the consequences of it are true.  He has not provided any documentary evidence which the Tribunal accepts supports the claim and has not provided a copy of the document he claims was issued by the police or SLA about the incident. If his aunt had approached other bodies for help, such as the Tamil Party, or human rights organisations as the applicant claimed, the Tribunal would expect that there would be documents to that effect. None was provided.

60.  The applicant said that his uncle worked for [number] years for a government [authority].  He claimed that the disappearance occurred about seven months before the applicant came to Australia, that is, about November 2011, two and a half years after the civil war ended.

61.  The Tribunal finds it implausible that a government employee of [number] years’ standing would be taken away by the army in November 2011 for suspected links to the LTTE, more than two and a half years after the end of the civil war. Further, he made no claim that his uncle’s wife or his mother or brother, who all live in Sri Lanka, have suffered any harm or threat of harm because of their relationship to that relative, which the Tribunal finds is inconsistent with his uncle being suspected of having links to the LTTE.

62.  To the contrary, the applicant’s evidence was that his [brother], [name], who lives in Sri Lanka, returned from Jaffna to their home village in 2007 when his father died and did not complete his studies.  He has lots of assets to look after, [details deleted].  He is leasing those.  He is not married and lives with their mother.

63.  The applicant claimed that his mother was threatened by the people who were pursuing him following the taking of his uncle and then the applicant’s leaving for overseas. He also said that the army still visited his home frequently looking for him.  His mother and brother are going along “OK” and not facing difficulties despite his claims.  The applicant explained that was because neither his mother nor brother had a problem with the LTTE.

64.  Because the Tribunal does not accept the applicant’s claim about his uncle, it does not accept that his mother has received any threats of harm directed to her or him before or after he left because of his uncle being so taken, or that she or the applicant will in the future.

65.  The Tribunal has taken into account that the applicant did mention his uncle in the entry interview [in] September 2012.  He said that he left Sri Lanka because three people speaking Sinhalese whom he did not know came to his house looking for him and asked about his uncle whom he claimed had been kidnapped on the same day 33 people were taken and later released. He did not claim to have been with his uncle at the time. He also said he went to [Town 2] but sometimes returned to his home.  That evidence was inconsistent with his evidence at the hearing.

66.  For the above reasons, the Tribunal does not accept that the applicant left Sri Lanka because he feared harm as a consequence of his uncle’s being taken by the army.  It does not accept that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm as a consequence of his being with his uncle when his uncle was taken by the army.

67.  The Tribunal finds on the applicant’s evidence, that none of the applicant, his mother, [or siblings] has suffered harm or threat of harm in Sri Lanka from anyone since the applicant’s release by the LTTE in 2004, because he was taken by the LTTE, or will in the future.  When the Tribunal asked how anyone would know what had happened to him, the applicant said that people at school would know.  When the Tribunal asked if that were so, why he had not been taken by the army after his release, the applicant said that not everyone knows, only a few.  When the Tribunal commented that everyone in his school knew he had been away for eight months because he had returned to that school, the applicant said some teachers knew. He had previously said that when he returned to school after his release some of the boys were a bit scared of him because they thought he was LTTE but gradually he explained what happened and they were “OK” with him, which indicates that his classmates were aware of why he had been absent for eight months.

68.  When the Tribunal commented that such a disappearance would have been the talk of the village, the applicant said that it was not a big issue at that time.  When the Tribunal commented that nothing happened until 2011 or 2012, the applicant said that the army leave the person to live in the community for a while and then investigates them and takes them away.

69.  The Tribunal does not accept the applicant’s responses explain why he has not suffered any harm from the army or any other Sri Lankan government authority or anyone else since his release from the LTTE but will if he returns. The civil war ended in May 2009.  The Tribunal does not accept that the Sri Lankan army or any other government authority has had or will have any interest in the applicant because of his time spent with the LTTE. 

70.  It also does not accept that the security forces are unaware of his history or that if they learned of it, it would threaten his life.  He gave detailed evidence that he was taken during a period of peace when the army and LTTE were both in control in his village – the army during the day and the LTTE at night. If the army was in control during the day at least, the Tribunal finds that his disappearance for eight months and return was well-known in his school and village and that the army would have been aware of it.  It also does not accept that if the security forces learned of his history with the LTTE it would threaten his life or that his return would trigger an investigation such that his history would be revealed and that would threaten his life.

71.  For the above reasons, the Tribunal does not accept the applicant’s claim that there is a real risk that he will suffer serious harm or a real chance that he will suffer significant harm because of his time with the LTTE.

72.  The Tribunal does not accept that any of the applicant, his mother [or siblings] has suffered any harm from anyone because of [Mr A]’s disappearance in 2006. In making that finding, the Tribunal has taken into account the applicant’s claims at the hearing that [Mr A] was helping the LTTE politically, distributing leaflets and organising martyrs’ days at school and Pongu Tamil, which he started doing in 2002 to 2004 or 2005 and that his political activity and their father’s membership of the Tamil National Alliance or Illankai Tamil Arasu Kadchi were the reasons for his disappearance.  While the Tribunal accepts [Mr A] disappeared in 2006 it does not accept that anyone knows how or why he disappeared. The applicant’s claims about the reasons for his brother’s disappearance or who took him are speculative.

73.  The Tribunal does not accept that the there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm because of the disappearance or activities of [Mr A] if he returns to Sri Lanka.

74.  The Tribunal does not accept that any of the applicant, his mother, [or siblings] have suffered any harm or threat of harm because of his father’s activities, either as a member of a Tamil political party or because he worked for the LTTE in a [program] while they lived in [village] which was controlled by the LTTE, from 1991 to 1997. The applicant claimed that they moved to a camp in [town] because of heavy fighting before returning home in about 1998 or 1999 where his father resumed [working].  When pressed about his father’s links with the LTTE while in [village], the applicant said that he did not really know, he was small and after he grew up they would not tell him about it and some people do is secretly.  Based on his evidence, the Tribunal finds that the applicant’s father continued to [work] without being threatened or harmed because of his activities or the activities of the applicant or of [Mr A], until the applicant’s father died [in] 2007. 

75.  In making that finding, the Tribunal has taken into account the applicant’s claim that when [a number of] boys and girls were shot [in] [District 1], his father raised his voice against the army.  The country information supports the applicant’s claim that [Tamil] [youth] were killed [in] [District 1] [in] [2006] and the killings are generally attributed to Sri Lankan security forces.[1]  The photographs and reports of the funeral demonstrate that thousands of people paid their respects to the slain students and that there was public outrage about the incident. The Tribunal accepts that the applicant’s father expressed the sentiment the applicant claimed.  

[1] [Information deleted].

76.  The Tribunal finds that the applicant does not claim that he suffered serious or significant harm in the incident he claimed occurred at the temple [in] November 2011.  The Tribunal finds that this was an example of the harassment Tamils face from the army from time to time.  He did not claim that it was a reason for his being searched for in 2012 or since.  The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or that there is a real risk that he will suffer significant harm because of indignity or harassment from the army because he is Tamil, and/or a Tamil in the Eastern Province.

77.  The Tribunal checked with the applicant during the hearing whether he claimed that his mother had links with the LTTE.  He said emphatically that he made no such claim.  The Tribunal therefore does not consider that matter further.

78.  The Tribunal finds that the applicant has not suffered serious or significant harm in Sri Lanka from the army, paramilitaries or any Sri Lankan government authority because he is Tamil, or a young male Tamil or because he is from the Eastern Province, or because of any combination of those characteristics.   It does not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm for any one more of the reasons that he is Tamil, a young male Tamil or because he is from the Eastern Province or because of any combination of two or more of those reasons. 

79.  The Tribunal has taken into account the country information and submissions provided in support of the applicant’s case but does not accept that the information supports findings to the contrary.  It has also taken into account the Department of Foreign Affairs and Trade (DFAT) Country Report dated 16 February 2015 (the Country Report) and the DFAT Thematic Report – People with Links to the Liberation Tigers of Tamil Eelam dated 3 October 2104 (the Thematic Report) and the Department’s policy guidelines in respect of refugee law and complementary protection. 

80.  The Tribunal accepts that the applicant will return to Sri Lanka as a failed asylum seeker who left Sri Lanka illegally.  The Tribunal accepts the information and assessment in the Country report about the treatment of returnees, including that the procedures are standard regardless of ethnicity and that detainees are not subject to mistreatment during their processing, in preference to any country information to the contrary.   

81.  The Tribunal accepts that the applicant will be questioned and there may be checks made, including in the applicant’s local area.  Even if the questioning or checks revealed that the applicant had been taken by and spent time with the LTTE in 2004, and/or that his brother disappeared in 2006 and had undertaken the pro-LTTE activities the applicant claimed and/or that his father had been a member of a Tamil political party and spoken out as he claimed, the Tribunal does not accept that that there is a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm as a consequence.  As set out above, he has not suffered such harm in the past.  That he has not indicates that those circumstances are not of the nature or seriousness to draw the adverse attention of the Sri Lankan army or other government or paramilitary authorities.

82.  The Tribunal also prefers the DFAT reports in preference to other country information in relation to the treatment of people who have departed illegally.  It accepts that the applicant will be charged with an offence because he has left Sri Lanka illegally, will be detained for a short period of time, go before a court and will be released on bail on his own recognisance with a guarantee from a family member and have to pay a fine.  The Tribunal accepts that some persons suspected of past links with the LTTE may be detained for longer periods of time or be targeted upon return to their home area.  However, the Tribunal is considering the particular circumstances of the applicant and does not accept that he has a profile, taking into account any one or more of the  histories of the applicant, [Mr A] and/or his father, and/or his uncle, that the applicant is a Tamil, a young Tamil male, that he is from the Eastern Province, and/or that he lived in an area controlled by the LTTE in the 1990s, that would bring him to the adverse attention of the Sri Lankan army or any other government body or paramilitary group. 

83.  For the above reasons, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm because he is a failed Tamil asylum seeker and/or who left Sri Lanka illegally.

84.  Taking into account the applicant’s claims singly or cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka.

85.  He does not have a well-founded fear of persecution for a Convention reason.

86.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

87.  Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

88.  For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

89.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

90.  There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

91.  The Tribunal affirms the decision not to grant the applicant a Protection visa.

Josephine Kelly
Member